Palm Beach County v. Federal Aviation Administration

USCA11 Case: 21-10771 Date Filed: 11/18/2022 Page: 1 of 45

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10771

____________________

PALM BEACH COUNTY,

CITY OF ATLANTIS, FLORIDA,

Petitioners,

versus

FEDERAL AVIATION ADMINISTRATOR,

Respondent,

CAPTAIN ERROL FORMAN,

Intervenor.

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2 Opinion of the Court 21-10771

____________________

Petition for Review of a Decision of the

Federal Aviation Administration

Agency No. 16-17-13

____________________

Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

Lantana Airport is a small regional airport in Palm Beach

County, Florida. Captain Errol Forman is a former commercial

pilot who now flies a small Cessna jet for his own personal use.

Twice in May 2016, Forman landed his Cessna at the Lantana Air-

port. It might have been a match made in the heavens, if not for

a county ordinance.

That ordinance on its face prohibits “pure turbo-jet aircraft”

and cargo-carrying aircraft that weigh more than 12,500 pounds

from using Lantana Airport, and Palm Beach County enforces the

ordinance in a way that actually bans all jets, not just the “pure

turbo” variety. So when Forman landed his turbofan Cessna jet at

Lantana Airport, the County threatened him with fines and jail

time. That bit of unexpected rough air triggered even more tur-

bulence.

Forman complained to the Federal Aviation Administra-

tion that the ordinance’s jet restriction violated a grant assurance

the County had made to the FAA in exchange for federal airport

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21-10771 Opinion of the Court 3

improvement money. The FAA agreed with Forman and ordered

the County to rescind the restriction. The County and the City of

Atlantis, which borders Lantana Airport, have petitioned us for re-

view of the FAA’s final agency decision. 1 Forman intervened.

I. The Statutory and Regulatory Background

The FAA gives grants to airport sponsors so that they can

build and improve airports to “maintain a safe and efficient nation-

wide” airport system. 49 U.S.C. §§ 47104(a), 47105(a); see also id.

§ 47102(26) (defining “sponsor” as “a public agency” or “a private

owner of a public-use airport that submits . . . under this subchap-

ter an application for financial assistance for the airport”). In ex-

change for the grants, sponsors must agree to various written “as-

surances,” including to make the airport “available for public use

on reasonable conditions and without unjust discrimination.” Id.

§ 47107(a)(1); see also Airport Improvement Program (AIP) Grant

Assurances, 79 Fed. Reg. 18,755, 18,755 (Apr. 3, 2014) (noting that

a “complete list of the current grant assurances can be viewed” at

https://www.faa.gov/airports/aip/grant_assurances). This case

concerns two grant assurances.

The first and most important one is Grant Assurance 22,

which is titled “Economic Nondiscrimination.” Fed. Aviation Ad-

min., Airport Sponsor Assurances 10–11 (2014),

1 Atlantis joined the County’s petition because “its residents may be subject

to aircraft noise and safety impacts” if the restriction is rescinded. We refer

to the County and Atlantis collectively as “the County.”

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https://www.faa.gov/sites/faa.gov/files/airports/aip/grant_as-

surances/airport-sponsor-assurances-aip.pdf. Subsection (a) of

Grant Assurance 22 requires sponsors to “make the airport availa-

ble as an airport for public use on reasonable terms and without

unjust discrimination to all types, kinds and classes of aeronautical

activities.” See id. at 10. Later subsections of Grant Assurance 22

give sponsors some authority to impose conditions or restrictions

on airport use. For example, subsection (h) allows sponsors to

“establish such reasonable, and not unjustly discriminatory, con-

ditions to be met by all users of the airport as may be necessary for

the safe and efficient operation of the airport,” while subsection (i)

allows sponsors to “prohibit or limit any given type, kind or class

of aeronautical use of the airport if such action is necessary for the

safe operation of the airport or necessary to serve the civil aviation

needs of the public.” Id. at 11.

The other assurance that is important here is Grant Assur-

ance 1(a), which is titled “General Federal Requirements.” Grant

Assurance 1(a) requires sponsors to “comply with all applicable

Federal laws, regulations, executive orders, policies, guidelines,

and requirements as they relate to the application, acceptance and

use of Federal funds for [a] project including but not limited to . . .

Title 49, U.S.C., subtitle VII, as amended.” Id. at 2. Subtitle VII

includes the Airport Noise and Capacity Act (ANCA). See 49

U.S.C. §§ 47521–34.

ANCA generally prohibits “airport noise and access re-

strictions on the operation of stage 2 and stage 3 aircraft” unless

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21-10771 Opinion of the Court 5

those restrictions meet stringent statutory requirements. 2 See id.

§ 47524. ANCA also mandates that restrictions on Stage 3 aircraft,

which is what Forman’s Cessna jet is, be “reasonable, nonarbi-

trary, and nondiscriminatory.” Id. § 47524(c)(2)(A). But ANCA

doesn’t apply to restrictions that were already in effect by October

or November 1990. See id. § 47524(c)(1) (making ANCA applica-

ble to “airport noise or access restriction[s] on the operation of

stage 3 aircraft not in effect on October 1, 1990”); id. § 47524(d)

(requiring a small subset of airport noise or access restrictions to

be “in effect on November 5, 1990” instead). Those restrictions

are considered “grandfather[ed].” Fed. Aviation Admin., Airport

Compliance Manual, FAA Order 5190.6B § 13.14(b) (2021),

https://www.faa.gov/documentLibrary/media/Order/Order-

5190-6B-Change1.pdf.

The FAA implements ANCA through 14 C.F.R. Part 161,

which sets out the process for analyzing and approving new noise

restrictions, see 14 C.F.R. §§ 161.101 to .417, and the penalties for

failure to comply with ANCA, see id. §§ 161.501 to .505. By con-

trast, the FAA enforces compliance with grant assurances using

2 Stage 2 and Stage 3 are noise level categories. See 14 C.F.R. § 36.1(f). Stage

3 jets, which are the second-quietest category, are “relatively quiet[].” See

Friends of E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133,

138 (2d Cir. 2016) (quotation marks omitted); Stage 4 Aircraft Noise Stand-

ards, 70 Fed. Reg. 38,742, 38,742–43 (July 5, 2005) (creating a new Stage 4

category that in 2006 replaced Stage 3 as the quietest U.S.-certified jet cate-

gory).

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two other regulatory mechanisms: an informal “Part 13” com-

plaint process, see 14 C.F.R. § 13.2; Airport Compliance Manual

§ 5.1, and a formal “Part 16” complaint process, see 14 C.F.R.

§ 16.23; Airport Compliance Manual § 5.1.

A person can report a Part 13 complaint by phone, letter, or

email, see Airport Compliance Manual § 5.6(a), and the complain-

ant doesn’t have to be affected by the violation, see id. § 5.2. Part

13 complaints are typically handled by the FAA Airports District

Office and its Regional Airports Divisions. Id. § 5.1. Those offices

might choose to investigate the allegations, choose to consult with

other FAA offices (like the Flight Standards or the Air Traffic ones)

to get airspace or safety studies, or choose to request more infor-

mation from the complainant or the airport sponsor. See id. § 5.8.

Those offices might also make a preliminary determination on

compliance, identify apparent violations, specify corrective ac-

tions, and prescribe deadlines for those actions. Id. §§ 5.11 to .13.

But any preliminary determination under Part 13 is not a formal

or final FAA determination, see id. § 5.11, and if the complainant

or the sponsor is dissatisfied, they may file a formal Part 16 com-

plaint, see id. § 5.12.

Part 16 complaints initiate “the formal administrative pro-

cess by which the FAA” makes “a formal agency finding” about an

airport sponsor’s “compliance with its federal obligations.” Id.

§ 5.16. A Part 16 complainant, unlike a Part 13 one, must be “di-

rectly and substantially affected” by the noncompliance and must

give a “concise but complete statement of the facts relied upon to

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21-10771 Opinion of the Court 7

substantiate each allegation,” with supporting documentation. 14

C.F.R. § 16.23(a)–(b). The airport sponsor gets to answer the com-

plaint, every other party gets to file a reply, and all filings must

contain supporting documents. Id. §16.23(d)–(i). The complain-

ant has the burden to “show noncompliance,” but the party who

files a motion or asserts an affirmative defense has the burden of

proof for those. Id. § 16.23(k).

When deciding a Part 16 complaint, “the FAA may rely en-

tirely on the complaint and the responsive pleadings,” or it may

conduct additional investigation if it finds there’s “a reasonable ba-

sis” for doing so. Id. § 16.29. Once the FAA has finished any in-

vestigation it decides in its “sole discretion” to conduct, see id., the

Director of the FAA Office of Airport Compliance and Manage-

ment Analysis makes an initial determination, id. §§ 16.3, 16.31.

That “Director’s Determination” must contain fact findings, legal

conclusions, and explanations, and it must be “supported by a pre-

ponderance of the reliable, probative, and substantial evidence

contained in the record.” See id. § 16.31(b).

The Director’s Determination isn’t a final decision subject

to formal judicial review. Id. §16.247(b)(2). But it can be appealed

to the FAA Associate Administrator for Airports. Id. §§ 16.3,

16.31(c), 16.33. If that happens, the parties may each file a brief,

see id. § 16.33(c)–(d), and the Associate Administrator “consider[s]

the issues” by analyzing whether: (1) “the findings of fact” are

“supported by a preponderance of reliable, probative, and substan-

tial evidence contained in the record”; (2) the “conclusions” are

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8 Opinion of the Court 21-10771

“made in accordance with law, precedent and policy”; (3) “the

questions on appeal” are “substantial”; and (4) “any prejudicial er-

rors occurred,” id. § 16.33(e). The Associate Administrator then

“issue[s] a final decision and order,” which are subject to judicial

review. Id. §§ 16.33(g), 16.247(a); see also 49 U.S.C. § 46110(a)

(noting that anyone with “a substantial interest” in an FAA order

may file “a petition for review” in the “court of appeals . . . for the

circuit in which the person resides or has its principal place of busi-

ness”).

II. The Lantana Airport & its Jet Restriction

Lantana Airport is a regional general aviation airport lo-

cated south of West Palm Beach. The County runs it as part of a

four-airport system. The airport has three relatively short run-

ways and no tower. It acts as a “reliever” for Palm Beach Interna-

tional Airport, which means it is intended to divert slower-moving

general aviation traffic (not scheduled passenger service) from that

larger, busier airport. Between 1982 and 2021 Lantana Airport re-

ceived more than $6 million in federal airport development assis-

tance through the § 47104(a) grant program, so it’s obligated to

follow the grant assurances.

As we have mentioned, the County enforces a restriction

that prohibits all jets from using Lantana Airport. And as we have

also mentioned, ANCA doesn’t apply to restrictions that were in

effect before late 1990. See 49 U.S.C. § 47524(c), (d); Airport Com-

pliance Manual § 13.14(b). So it matters when Lantana Airport’s

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jet restriction took effect. For that reason, we set out in detail the

restriction’s trajectory and flight path.

The jet restriction began in June 1973, when the Board of

County Commissioners passed a regulation providing that: “All jet

aircraft in addition to all aircraft weighing in excess of 12,500

pounds engaged in aircraft cargo operations, shall be prohibited

from parking, landing, or taking off from the Lantana Airport.”

The regulation was intended to “limit planes with excess noise

from utilizing the airport.” Because “written confirmation of ver-

bal approval” from the FAA “had not been yet received,” the

Board set a July 1, 1973 effective date for the regulation to “allow

sufficient time for this written response.” Before the regulation

became effective, the FAA’s Miami Airports District Office told

the County in writing that the FAA had “no objections to the pro-

posed operational regulation,” though the Office did not explain

why it had none. In November 1973, the Board revised the regu-

lation to read: “All jet aircraft prohibited and all aircraft weighing

in excess of 12,500 pounds engaged in aircraft cargo operations

prohibited.”

In 1988 the Board adopted an ordinance “promulgating air-

port regulations,” which it housed in Appendix B of the County’s

Code of Laws and Ordinances. The ordinance explicitly “super-

cedes (sic) and repeals all airport regulations adopted on or before

October 27, 1987.” The ordinance did not contain a Lantana

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Airport jet restriction like the one in the 1973 regulation. 3 The

ordinance did contain, in a section called “Aircraft operation

rules,” a provision authorizing the County airport director to “re-

strict any flight or other operations at the airport . . . for any justi-

fiable reason.” The stated purpose of the ordinance was to “pro-

vide for the safety of life and property on airports,” to protect

“public and private property within airport boundaries,” and to

“promote the general welfare.”

In 1991 the County entered an “interlocal governmental

agreement” with the City of Atlantis, which borders the airport.

Under a heading called “Lantana Airport Use Restrictions,” the

agreement provided: “Restricted aircraft will be: pure turbo jet air-

craft and aircraft in excess of 12,500 pounds engaging in air cargo

operations.” The agreement “recognized that the restrictions . . .

are simply guidelines” but noted that if they “cannot be enforced

by the County due to FAA regulations, the County . . . agrees to

take reasonable steps to attempt to make [them] mandatory.” The

preamble of the agreement explained that the County had deter-

mined it was in “the best interests of the public health, safety and

welfare” — including for “residents living near the Airport” like

the people in Atlantis — to have set procedures at the Lantana

3 In fact, the only two times the Lantana Airport is mentioned in the 1988

ordinance are in the definition of “airport” and in an article devoted to noise

abatement. The noise provision in the 1988 ordinance provided: “Preferen-

tial runway Palm Beach County Park, Lantana, is Runway #15-33, conditions

permitting at pilot’s discretion.”

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Airport and a master plan for its “future growth and safety.” It

noted that the County had developed “certain procedures” after

study and public comment and with the input of a citizens’ group.

In 1992 the County’s Director of Airports invoked his au-

thority under the 1988 ordinance’s aircraft operation rules to issue

this directive: “Jet aircraft, of any type and weight classification are

prohibited from operating (departing and arriving) at Palm Beach

County Park Airport – Lantana.” According to the County’s brief

to us, the directive was prompted by a jet landing at the Lantana

Airport.

In 1998 the Board passed a resolution “adopting airport

rules and regulations.” The resolution noted that “certain rules

and regulations exist which govern . . . airports located in Palm

Beach County” and that the Board had “determined that it is nec-

essary to repeal the existing rules and regulations and adopt” oth-

ers. The resolution explicitly provided:

The Rules and Regulations, as adopted by prior Res-

olutions and codified in the Code of Laws and Ordi-

nances relating to Palm Beach County Government

at Appendix B, as may be amended, and all other

Resolutions, or parts thereof in conflict with the pro-

visions of this Resolution, are hereby repealed to the

extent of such conflict. This Resolution supersedes

and repeals all Airport Rules and Regulations

adopted before [February 24, 1998].

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The codified 1998 Rules and Regulations, which were attached to

the resolution, reiterated that “[a]ll Rules and Regulations previ-

ously enacted and any other ordinance or resolution in conflict

with the Rules and Regulations are hereby repealed to the extent

of the conflict.” The 1998 Rules and Regulations also included,

within an article devoted to noise abatement, four sections specific

to Lantana Airport. Of those four sections, two are relevant here.

One provided that “noise abatement and control procedures at the

Lantana Airport shall be governed by” the County’s 1991 Agree-

ment with Atlantis. The other, called “Use Restrictions,” pro-

vided:

The following use restrictions for the Lantana Airport

shall be enforced in accordance with the Lantana In-

terlocal Agreement:

(a) Pure turbo-jet aircraft and aircraft in excess of

12,500 pounds engaging in air cargo operations are

prohibited.

(b) All regularly scheduled commercial air carrier pas-

senger flights are prohibited.

The 1998 Rules and Regulations, including the Lantana Airport jet

restriction, are still in effect today. See Palm Beach Cnty., Fla.,

Code of Laws & Ordinances app. B §§ 12-4 to 12-7 (2022).

III. Captain Forman & his FAA Proceedings

Captain Forman is a former commercial pilot who flew

Boeing 727 jets for 25 years. He now flies a Cessna Citation twin-

engine, turbofan (Stage 3) jet that weighs less than 12,500 pounds,

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21-10771 Opinion of the Court 13

and it is not used for cargo operations. In May 2016, he twice

landed his Cessna at the Lantana Airport and was threatened by

the County’s Director of Airports with fines and jail time.

A. Part 13 Proceedings

The month before that happened, in April 2016, Forman

had emailed the FAA’s Orlando Airports District Office about the

jet restriction at Lantana Airport. That District Office contacted

the FAA’s Southern Region Airports Division for assistance. After

the Airports Division gave Forman information about the infor-

mal Part 13 complaint process, Forman emailed a complaint to the

Airports Division alleging that Lantana Airport’s jet restriction vi-

olated Grant Assurance 22.

In response to Forman’s Part 13 complaint, the County as-

serted that Lantana Airport’s jet restriction was grandfathered un-

der ANCA, that the FAA had not objected to the jet restriction in

the (at that time) 43 years it had been in place, and that “many

stakeholders” had “justifiably relied” on the FAA’s “prior determi-

nations” that the jet restriction was “enforceable.”

The County argued that the 1998 resolution didn’t alter the

effect of the 1973 regulation and that “the difference in language

between the 1973 restriction and the 1998 resolution” — specifi-

cally the change from “all jet aircraft” to only “pure turbo-jet air-

craft” — was “inadvertent” and “reflected misunderstanding” by

the Board. To support its argument that “any change in language

was unintentional,” the County stated that it had “continued to

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14 Opinion of the Court 21-10771

enforce the restriction exactly as originally enacted in 1973,” as a

“ban on all jet aircraft.”

The County also argued that the 1988 ordinance didn’t re-

peal the 1973 regulation, both because the 1988 ordinance wasn’t

adopted by resolution as required by Fla. Stat. § 332.08(2) and be-

cause it wasn’t “intended to substantively alter any of the Lantana-

specific restrictions.” And the County asserted that it complied

with Grant Assurance 22 because subsection (i) of that assurance

allows airport proprietors to enact restrictions, including about

noise, if they are reasonable and necessary for the safe and efficient

operation of the airport, which the jet restriction is because pure

turbojets are “generally noisier” than turbofan jets.

Forman replied that the County bore the burden of justify-

ing its noise-based restriction by satisfying the FAA’s three-part

test, which requires that “a regulation restricting airport use for

noise purposes: (1) be justified by an existing noncompatible land

use problem; (2) be effective in addressing the identified problem

without restricting operations more than necessary; and (3) reflect

a balanced approach to addressing the identified problem that

fairly considers both local and federal interests.” Airport Compli-

ance Manual § 13.8b; see also Aircraft Owners & Pilots Assoc. v.

City of Pompano Beach, FAA Docket No. 16-04-01, Director’s De-

termination (Dec. 15, 2005), 2005 WL 3722717, at *28. Forman

argued the County had failed to satisfy that test and could not sat-

isfy it on the current record because it hadn’t conducted the re-

quired safety analysis and airspace study. Citing Aircraft Owners,

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21-10771 Opinion of the Court 15

he argued that compliance with or exemption from ANCA doesn’t

relieve an airport sponsor of the duty to comply with grant assur-

ances.

The Airports Division mostly agreed with Forman. In De-

cember 2016 it issued a preliminary Part 13 report concluding that

Lantana Airport’s jet restriction “may be unjustly discriminatory,”

was “not consistent” with Grant Assurance 22(a), and wasn’t

grandfathered under ANCA. The report pointed out that there

was no “documented explanation as to why previous FAA review-

ers believed th[e] discriminatory restriction was just or reasona-

ble.” 4 It explained that, even though the FAA had “[h]istorically”

considered the restriction to be grandfathered by ANCA, the

County’s documents showed the 1973 regulation was repealed by

the 1988 ordinance and not reenacted until the 1991 interlocal

agreement at the earliest, which was after ANCA’s 1990 grandfa-

thering date. It noted that the jet restriction might be permissible

under Grant Assurance 22(i), but it concluded it couldn’t know

that for sure until it coordinated with FAA’s Air Traffic Organiza-

tion to assess whether the restriction was “necessary for airspace

safety” or efficiency.

After conducting that assessment, the Airports Division is-

sued a finalized Part 13 report in March 2017. That report con-

cluded that allowing jets on one of Lantana Airport’s runways

4 A specialist in the FAA’s Orlando Airports District Office also concluded: “It

does not appear that the FAA has ever analyzed this restriction.”

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16 Opinion of the Court 21-10771

would “not affect safety or efficiency” but that the County could

“continue to restrict jet operations” on the other two runways be-

cause they “could potentially impact air traffic efficiency at Palm

Beach International.” The Airports Division noted, however, that

its “conclusions [did] not obligate the County to alter its existing

plans for” Lantana Airport because other features of the poten-

tially usable runway may justify the County “continu[ing] to rea-

sonably restrict” its use.

B. Part 16 Proceedings

Despite the Airports Division’s conclusions, the County did

not change the Lantana Airport’s jet restriction. So Forman filed

a formal Part 16 complaint in August 2017, again alleging that the

jet restriction violated Grant Assurance 22(a). He noted that the

restriction was being applied to all jets and not just to pure turbo-

jets as it was written. He argued that it wasn’t grandfathered un-

der ANCA. He reiterated that the County hadn’t done the re-

quired analyses to show the noise-based restriction was reasona-

ble, either when it was first enacted or since then. And he asserted

that compliance with ANCA “does not immunize an airport spon-

sor from liability for violating” a grant assurance.

The County filed a motion to dismiss Forman’s Part 16

complaint. As a preliminary matter, the County contended that a

Part 16 proceeding wasn’t the appropriate vehicle for addressing

ANCA issues and that the Director of the FAA Office of Airport

Compliance and Management Analysis (the official deciding For-

man’s Part 16 complaint) should “assume without deciding, for

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21-10771 Opinion of the Court 17

the purpose of [the Part 16] proceeding, that the restriction is

grandfathered under ANCA.”

The County alternatively argued that, if the Director chose

to consider whether the jet restriction was grandfathered instead

of just assuming that it was, the restriction was grandfa-

thered. The County argued that ANCA doesn’t require re-

strictions to be codified and that the County had continually en-

forced the jet restriction in exactly the same way since 1973, re-

gardless of whether the text of the 1973 regulation had been re-

pealed or narrowed. According to the County, that meant the re-

striction was “in effect” before October or November 1990, which

meant the restriction was grandfathered and ANCA’s require-

ments did not apply to it.

And the County argued that Forman hadn’t justified revis-

iting what it considered to be the FAA’s repeated findings that the

restriction was “reasonable, in conformance with the County’s

grant assurance obligations, and enforceable.” The County as-

serted it would be “inappropriate” for the FAA to make the

County rescind the jet restriction “without first comprehensively

and formally analyzing whether” the restriction “continues to be

justified for noise, safety and/or efficiency reasons” and “what the

actual impact of rescinding or modifying the restriction would

be.”

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1. The Director’s Determination

The Director agreed with Forman and denied the County’s

motion to dismiss. On the preliminary matter of whether he could

address ANCA issues in a Part 16 proceeding, the Director found

that the case “ultimately involve[d] an alleged violation of the

grant assurances.” And “where the allegations regarding viola-

tions of the assurances are intertwined with issues related to

ANCA, the Director is certainly authorized to examine or take no-

tice of” whether the restriction complied with ANCA, including

whether it was grandfathered. That’s because the Director “needs

to understand the status of the questioned noise and access re-

striction under ANCA” to “reach a ruling on the grant assurances.”

So ANCA being “raised as a related or ancillary issue or defense

does not divest the Agency of jurisdiction.” The Director also

noted that Grant Assurance 1(a) required the County to comply

with ANCA, but he didn’t explicitly anchor his authority to that

provision.5

On the merits, the Director found that the jet restriction

was not grandfathered under ANCA because the “plain language”

of the 1988 ordinance clearly repealed the 1973 regulation and the

reintroduction of the restriction in the 1991 interlocal agreement

occurred after the ANCA grandfathering deadline. He also found

5 As a second preliminary matter, the Director addressed who had the burden

of proof, concluded Forman did, and determined Forman had “stated a valid

prima facie case.”

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21-10771 Opinion of the Court 19

that the County wasn’t in compliance with Grant Assurance 22.

Citing the Second Circuit’s East Hampton decision, the Director

concluded that noise and access restrictions that don’t comply

with ANCA and aren’t grandfathered are a “violation per se of

Grant Assurance 22” because actions that violate legal mandates

like ANCA “are, by their nature, unreasonable and arbitrary.”

Further analyzing the jet restriction, the Director explained

that it “lacked justification and support” because the County had

not defended the necessity of the restriction with “specifically

identified and documented noise, safety, and efficiency concerns.”

Instead the County simply argued that the restriction had been in

effect since 1973 and, as a result, “should be allowed to stand with-

out providing evidence that a noise problem exists.” But the Di-

rector rejected the County’s reliance on what it considered the

FAA’s implicit approval of the restriction because the FAA had

never before been “formally asked to provide an analysis” of the

restriction and the FAA’s informal determinations related to the

restriction did not consider the impact of the 1988 ordinance on

the restriction’s continued validity.

Finally, the Director concluded that the jet restriction was

“unjustly discriminatory because it allows aircraft equally noisy or

noisier than the aircraft” it restricts. And he noted that the

County’s enforcement of the restriction was even more discrimi-

natory than the written restriction itself indicated because the

County actually excluded all jets — including Forman’s turbofan

— not just pure turbojets. The Director ordered the County to

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20 Opinion of the Court 21-10771

submit a Corrective Action Plan revoking the restriction and to

publicize that revocation, though he did agree with the County

that its Plan could take a “measured approach.”

2. The Final Agency Decision of the Associate Administrator

The County appealed the Director’s Determination to the

Associate Administrator, who affirmed it but modified and ex-

panded the Corrective Action Plan. First, the Associate Adminis-

trator rejected the County’s argument that the Director had ex-

ceeded the FAA’s authority by considering ANCA in a Part 16 pro-

ceeding. He noted that the Director hadn’t based his jurisdiction

on ANCA but instead on the “grant assurance issue” and con-

cluded that “the grandfathering inquiry was integral to reach that

issue.” The Associate Administrator also agreed with the Director

that nothing in Part 16 of the regulation bars considering ANCA

in Part 16 proceedings, particularly in light of the Second Circuit’s

East Hampton decision. He distinguished the FAA’s Aircraft Own-

ers decision, which had declined to consider ANCA in a Part 16

proceeding.

The Associate Administrator rejected the County’s argu-

ment that the restriction was grandfathered because it was “in ef-

fect” in 1990. He noted that the County had provided “no author-

ity” for its position that its past practices should determine

whether the restriction remained in effect, and he concluded that

the definition of “effect” supported the Director’s view that the

existence of a law was the relevant factor. The Associate Admin-

istrator noted that it appeared the County’s own practice was “to

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21-10771 Opinion of the Court 21

tie the existence of a restriction to a formal enactment,” and he

reasoned that “ANCA itself” supported his conclusion that grand-

father rights apply only to formally documented restrictions in-

stead of to mere practices. As he viewed it, ANCA tied both grand-

father rights and similar rights to the existence of formal legal doc-

uments. There was, he added, “no support for the County’s ap-

proach of establishing grandfather rights . . . based on an alleged

practice untethered from law and in contradiction to record evi-

dence.”

As to the FAA’s earlier dealings with the Lantana Airport

jet restriction, the Associate Administrator found that the Director

had appropriately “determined whether prior FAA actions were

formal or informal and whether they were based on a complete

record.” He pointed out that previous FAA letters discussing the

restriction had no “explanation or supporting analysis” about why

or how the restriction “was reasonable and not unjustly discrimi-

natory.” Those FAA letters did not discuss the “key legal develop-

ment” of the 1988 repeal. As a result, their conclusions had been

“based on incomplete facts,” and the Director had properly given

them “limited weight.” The Associate Administrator also rea-

soned that because a 2001 informal complaint about the Lantana

Airport jet restriction “did not result in an FAA determination,” it

was “not analogous to ‘FAA approval.’” So he concluded that

none of the earlier FAA examinations of the jet restriction showed

it was grandfathered.

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22 Opinion of the Court 21-10771

Finally, the Associate Administrator found the Director had

correctly concluded that the jet restriction violated Grant Assur-

ance 22. To “address the County’s argument that the Director did

not provide evidence to substantiate his findings or truly analyze

the facts of the case,” the Associate Administrator reexamined “all

of the relevant elements” in the restriction, including “jet noise,”

“aircraft weight,” “cargo operations,” “safety and efficiency,” and

environmental impact.

On jet noise, the Associate Administrator found no justifi-

cation for the restriction because the County had “no substantive

data” — like noise studies or documentation — from 1973 or since

to prove that there was a noise problem or that the restriction was

the least restrictive solution to it. Instead, the FAA’s own objec-

tive data on aircraft noise showed that many of the aircraft Lan-

tana Airport allows are noisier than jets and that they have been

noisier before and since 1973, making the restriction “flawed the

day it was adopted.”

Objective data similarly refuted the need for the restriction

based on weight because there was no link between weight and

noise: many aircraft weighing less than 12,500 pounds are noisier

than aircraft weighing more than that. And while the County ar-

gued heavier aircraft do more damage to the airport’s pavement,

objective data showed that was not true. Nor was there any rea-

son to prohibit cargo planes at Lantana Airport because “[w]hat

an aircraft carries, people or cargo, or what operation it performs,

is unrelated to noise, weight, safety, or any other justification.”

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21-10771 Opinion of the Court 23

After noting “the evidence strongly suggests that the real

reason for these restrictions is noise mitigation and not safety and

efficiency,” the Associate Administrator found no safety or effi-

ciency justification existed anyway. He explained that the “FAA,

not the County, is the final authority” about safety and efficiency

and that the FAA Flight Standards Office had no objection to tur-

bojet operations at the Lantana Airport, as its analysis in Forman’s

Part 13 proceeding showed. Because “Flight Standards is the ulti-

mate expert arbiter” and “provides the definitive position on avia-

tion safety,” the Director had appropriately relied on its finding.

As a result, the Associate Administrator agreed with “the overall

conclusion” that the airport “can safely and efficiently accommo-

date jets.”

But the Associate Administrator disagreed with the Air-

ports Division’s Part 13 conclusion that the jet restriction could

continue to apply to two of Lantana Airport’s three runways. He

explained that the concern of the Flight Standards Office about

those two runways related to airspace impacts at Palm Beach In-

ternational Airport, which wasn’t a safety issue and could be ac-

commodated with flight pattern modifications. As for environ-

mental impacts, the Associate Administrator noted that Part 16

proceedings don’t require statutory evaluations but that the FAA

may later have to perform one if the County’s Corrective Action

Plan triggers that obligation.

Because the jet restriction wasn’t justified for any of the rea-

sons the County asserted, the Associate Administrator found it

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24 Opinion of the Court 21-10771

was unreasonable and unjustly discriminatory. He acknowledged

the County’s request that the FAA study the “impacts of rescind-

ing the restriction” before requiring rescission, but he found the

need for a study itself “illustrates the lack of justification for the

restriction in the first place.” The Associate Administrator con-

cluded that the Director hadn’t erred in finding the County vio-

lated Grant Assurance 22 or in ordering a Corrective Action Plan

requiring the County to rescind the restriction.

The Associate Administrator did, however, modify the

Plan’s timeline. Because the County had not corrected or re-

scinded the restriction despite having multiple opportunities to do

so, he declined to delay the recission any longer and ordered the

County to provide “instant relief in the form of reasonable airport

access” during its “phased-in approach” to the rest of the Plan.

The Associate Administrator also ordered the FAA not to approve

any of the County’s grant applications until it approved the

County’s steps under the Plan and to “consider appropriate action

regarding the County’s noncompliance with ANCA.”

IV. Discussion

The County makes three arguments in its petition for re-

view of the Associate Administrator’s Final Administrative Deci-

sion. Two concern ANCA, and one concerns Grant Assurance 22.

A. The ANCA Issues

As it has throughout the administrative proceedings, the

County continues to contend that the FAA exceeded its authority

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21-10771 Opinion of the Court 25

under Part 16 by considering ANCA issues when analyzing For-

man’s complaint. It also contends the Associate Administrator’s

conclusion that Lantana Airport’s jet restriction wasn’t grandfa-

thered under ANCA was arbitrary, capricious, unsupported by

substantial evidence, and not in accordance with the law.

1. Part 16 Authority

The County contends that the FAA was wrong to analyze

ANCA in Forman’s Part 16 proceeding because the Act has its own

separate enforcement process: a Part 161 proceeding. See supra at

5; infra at 26–27. The County asserts that, by considering ANCA

in a Part 16 proceeding, the agency failed to follow its own regu-

lations and precedent. The FAA responds that it has the authority

to enforce grant assurances in a Part 16 proceeding and that, be-

cause noncompliance with a federal law like ANCA can make a

restriction unreasonable, it needed to analyze ANCA to enforce

the grant assurances as it did here. The FAA notes that Part 16

doesn’t specify how it must evaluate grant compliance, nor does

Part 16 prohibit it from taking into account violations of other fed-

eral laws when determining whether a restriction is unreasonable

or unjustly discriminatory.

To determine whether the FAA may consider ANCA issues

in a Part 16 proceeding or instead must use a Part 161 proceeding

for that, we interpret the regulations that govern those proce-

dures. “When we construe regulations, we begin with the lan-

guage of the regulation, just as we do for statutes.” Landau v.

RoundPoint Mortg. Servicing Corp., 925 F.3d 1365, 1369 (11th Cir.

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26 Opinion of the Court 21-10771

2019). If we find the Part 16 and Part 161 regulations to be “genu-

inely ambiguous,” we will defer to the FAA’s interpretation of

them if it is both “reasonable” and “worthy of controlling weight.”

See Rafferty v. Denny’s, Inc., 13 F.4th 1166, 1179 (11th Cir. 2021)

(quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2415–16 (2019)). Of

course, if we find those regulations to be unambiguous, we

needn’t and won’t defer to the FAA’s view. See Kisor, 139 S. Ct.

at 2415 (“[I]f the law gives an answer — if there is only one rea-

sonable construction of a regulation — then a court has no busi-

ness deferring to any other reading, no matter how much the

agency insists it would make more sense.”).

It’s true that the FAA can and sometimes does enforce

ANCA through Part 161 proceedings. Part 161 regulations set out

the conditions new noise restrictions must meet to be permitted

under ANCA and the process new noise restrictions must satisfy

before they can be approved under the Act. See 14 C.F.R. §§ 161.1

to .417. Part 161 regulations also make clear the procedures used

when an airport sponsor appears to be in violation of ANCA, as

well as the penalties that apply when a sponsor violates it. See id.

§ 161.501 (noting that the FAA can “terminate eligibility for air-

port grant funds and [has] authority to impose or collect passenger

facility charges for an airport operator’s failure to comply with”

ANCA); id. §§ 161.503 to .505. But while Part 161 is the only way

to get a new noise restriction approved under ANCA or to invoke

the specific penalties available for ANCA violations, nothing in

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21-10771 Opinion of the Court 27

Part 13, Part 16, or Part 161 suggests that Part 161 proceedings are

the only ones in which the FAA can consider ANCA compliance.

Not only that, but Part 16 regulations explicitly permit the

FAA to evaluate potential violations of the 49 U.S.C. § 47107 grant

assurances in Part 16 proceedings. See 14 C.F.R. § 16.1(a)(5). And

Grant Assurance 1(a) explicitly requires airport sponsors to com-

ply with ANCA. See Airport Sponsor Assurances at 2 (“The spon-

sor hereby assures and certifies, with respect to this grant that . . .

[i]t will comply with . . . Title 49, U.S.C., subtitle VII, as

amended.”); Friends of E. Hampton Airport, 841 F.3d at 138 (“Sub-

title VII (referenced in Grant Assurance 1(a), at Part B, Chapter

475, Subchapter II) encompasses the Airport Noise and Capacity

Act of 1990 (‘ANCA’).”). A proper evaluation of an airport spon-

sor’s compliance with grant assurances not only allows the FAA

to consider ANCA issues that are intertwined with or relevant to

grant assurance issues, it likely requires that consideration.

That’s so even though Forman didn’t specifically identify

Grant Assurance 1(a) as a basis for his complaint. The pleading

rules for a Part 16 proceeding don’t require a complainant to iden-

tify the specific grant assurance (or assurances) potentially being

violated; they require only a description of how the complainant

was “directly and substantially affected by the things done or omit-

ted to be done by the respondents.” See, e.g., 14 C.F.R. § 16.23.

Once the description in Forman’s complaint revealed that the jet

restriction may not be compliant with ANCA, which would mean

the County was not compliant with Grant Assurance 1(a), the FAA

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28 Opinion of the Court 21-10771

was correct to evaluate that potential noncompliance. ANCA

compliance is a component of grant assurance compliance, and

Part 16 proceedings are the correct vehicle for the FAA to evaluate

grant assurance compliance. Though the FAA did not explicitly

anchor its authority to consider ANCA issues in Forman’s Part 16

proceeding on Grant Assurance 1(a), it recognized that specific

grant assurance could support consideration of the ANCA issues

in this proceeding. It was correct.

The FAA was also correct that it had to consider the poten-

tial ANCA issues in order to assess the County’s alleged violation

of Grant Assurance 22. That’s because Grant Assurance 22(a) re-

quires airport sponsors to “make the airport available as an airport

for public use on reasonable terms,” while Grant Assurance 22(h)

requires any restrictions on the airport’s use to be “reasonable.”

See Airport Sponsor Assurances at 10–11 (emphases added). And

“actions taken in violation of legal mandates” like ANCA “are, by

their nature, unreasonable.” Friends of E. Hampton Airport, 841

F.3d at 153 (emphasis added). So before the FAA could decide

whether Lantana Airport’s jet restriction was reasonable or unrea-

sonable — and, as a result, compliant or noncompliant with Grant

Assurance 22 — it had to decide both whether the restriction was

within or grandfathered outside the scope of ANCA and, if within

ANCA’s scope, whether it violated that law. That is exactly what

the FAA did.

Our conclusion about the FAA’s authority might be differ-

ent if the goal of Forman’s Part 16 proceeding had been to subject

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21-10771 Opinion of the Court 29

the County to the specific penalties available for violating ANCA.

But Forman didn’t ask that the County’s federal airport grants be

terminated; he asked only that Lantana Airport be required to “al-

low[] turbofan jets” like his Cessna to use the airport. Similarly,

we might agree with the County if the FAA had assessed ANCA-

specific penalties in its Final Agency Decision, but that’s not what

happened.

While the Associate Administrator found in the Final

Agency Decision that the jet restriction is “not grandfathered un-

der ANCA,” he did not order termination of the County’s grants.

Instead, he ordered that approval of the County’s grant applica-

tions “be withheld” until the County complies with the Corrective

Action Plan. Withholding approval of a grant application is differ-

ent from terminating a previously approved grant. The Associate

Administrator also specifically directed the FAA to “consider ap-

propriate action regarding the County’s noncompliance with

ANCA.” That “appropriate action” must be an ANCA-specific

Part 161 proceeding where the FAA would be authorized to assess

ANCA-specific penalties, which means the Final Agency Decision

did not address the County’s ANCA violation outside of how it

impacted the County’s compliance with the grant assurances. In-

stead, the Final Agency Decision analyzed and decided ANCA is-

sues that were bound up in its decision about whether the County

violated a grant assurance, which it had the authority to do in a

Part 16 proceeding.

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30 Opinion of the Court 21-10771

We need not address any question about the deference we

might owe the FAA’s interpretation of the Part 16 and Part 161

regulations because in our view those regulations make clear that

the FAA’s interpretation is correct even without any deference.

See Kisor, 139 S. Ct. at 2415. ANCA issues are properly considered

in a Part 16 proceeding. The FAA had authority to consider ANCA

issues as a component of its analysis of the County’s compliance

with its grant assurances.

2. Grandfathering

The County contends the Associate Administrator’s deter-

mination that Lantana Airport’s jet restriction was not grandfa-

thered under ANCA was arbitrary, capricious, unsupported by

substantial evidence, and not in accordance with the law. It argues

the jet restriction has been continuously “in effect” since 1973, ei-

ther because: (1) the 1988 ordinance didn’t repeal the restriction

or (2) even if it did, the restriction’s “formal codification status is

irrelevant” and the County’s consistent enforcement of it is all that

matters. The FAA replies that the 1988 ordinance did repeal the

jet restriction and that ANCA’s text shows “the grandfather clause

does not apply to informal county practices implemented over a

legislative repeal” because ANCA elsewhere requires formal and

operative documents when using the phrase “in effect.”

As we have noted, ANCA doesn’t apply to restrictions that

were in effect before October or November 1990. See 49 U.S.C.

§ 47524(c)(1) (making ANCA applicable to “airport noise or access

restriction[s] on the operation of stage 3 aircraft not in effect on

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21-10771 Opinion of the Court 31

October 1, 1990”); id. § 47524(d) (requiring a small subset of air-

port noise or access restrictions to be “in effect on November 5,

1990” instead); Airport Compliance Manual § 13.14(b). So if the

1973 jet restriction has in fact been in continuous effect for 49

years, as the County argues, it would be grandfathered under

ANCA. If there was a break in the restriction’s effectiveness, how-

ever — for example, if it was repealed and then reenacted after the

effective date of ANCA in 1990 — the restriction would not enjoy

grandfather protection.

With that in mind, we address the County’s first argument,

which is that the 1988 ordinance didn’t repeal the 1973 regulation

establishing the jet restriction. It’s easy to address. The 1988 or-

dinance explicitly states that it “supercedes (sic) and repeals all air-

port regulations adopted on or before October 27, 1987.” The

1973 jet restriction, which was adopted by the Board to regulate

noise at Lantana Airport, is certainly an airport regulation. And it

was certainly adopted by the County before October 1987. So it

was certainly within the group of regulations the 1988 ordinance

repealed.

The 1988 ordinance’s repealer language is clear: it “super-

cedes (sic) and repeals all airport regulations adopted on or before

October 27, 1987.” Yet, the County argues that the Board “had no

intention to repeal the jet restriction” and that Florida law requires

us to subordinate the ordinance’s clear language to the Board’s

“evident legislative intent.” But to “discern legislative intent,”

Florida courts look “first to the plain and obvious meaning of the

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32 Opinion of the Court 21-10771

[law]’s text.” W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 9

(Fla. 2012). “If that language is clear and unambiguous and con-

veys a clear and definite meaning,” they “will apply that unequiv-

ocal meaning and not resort to the rules of statutory interpretation

and construction.” Id. The language of the 1988 ordinance could

scarcely be any clearer or more unambiguous or more definite. It

expressly repealed “all airport regulations adopted on or before

October 27, 1987,” and it put a comprehensive new airport regu-

latory scheme in their place.

We have no doubt that the 1973 jet restriction regulation

was repealed when the 1988 ordinance said it was. But if we had

any doubt, the 1998 resolution would dispel it. Like the 1988 or-

dinance did with all airport regulations adopted before October

1987, the 1998 resolution explicitly “supersedes and repeals all Air-

port Rules and Regulations adopted before” February 24, 1998.

The 1998 resolution’s repeal included the “Rules and Regulations,

as adopted by prior Resolutions and codified in the Code of Laws

and Ordinances relating to Palm Beach County Government at

Appendix B.” Appendix B is where the 1988 ordinance’s compre-

hensive framework of airport regulations had been codified.

Which means that the 1998 resolution repealed the entire airport

regulatory scheme that had been enacted by the 1988 ordinance.

The 1998 resolution put into effect a new set of Rules and

Regulations for airports, which remain in effect today. See Palm

Beach Cnty., Fla., Code of Laws & Ordinances app. B (2022).

Those Rules and Regulations include four sections specific to

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21-10771 Opinion of the Court 33

Lantana Airport. Id. at §§ 12-3 to 12-7. One of those sections, un-

der the heading “Use Restrictions,” is the jet restriction: “Pure

turbo-jet aircraft and aircraft in excess of 12,500 pounds engaging

in air cargo operations are prohibited.” Id. at § 12-6(a). The jet re-

striction created by the 1998 Rules and Regulations was a new

noise restriction, both legislatively and linguistically. Compare id.,

with Suppl. App. at 244 (noting that the 1973 regulation, as

amended in November 1973, read: “All jet aircraft prohibited and

all aircraft weighing in excess of 12,500 pounds engaged in aircraft

cargo operations prohibited”). And noise restrictions enacted af-

ter ANCA’s 1990 effective date do not get grandfather protection.

See 49 U.S.C. § 47524(c), (d).

That brings us to the County’s second argument, which is

that the 1973 jet restriction was (and is) still “in effect” for ANCA

purposes, despite being explicitly repealed, because its “formal

codification status is irrelevant.” The County not only admits but

insists that for nearly fifty years its practice has been “to enforce

the restriction exactly as originally enacted in 1973,” as a “ban on

all jet aircraft.” Which means that for the 34 years since the re-

striction was repealed by the 1988 ordinance, the County has ig-

nored that repeal. And the County argues that doing so has earned

it the right to continue to do so. We have seldom, if ever, encoun-

tered any other party who has argued that because it has not fol-

lowed the law for years, it should not be required to do so now.

There’s an obvious reason for the rarity of that argument.

It violates a core principle of our government by ignoring the

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34 Opinion of the Court 21-10771

critical separation of powers rule that it is the executive branch’s

job to enforce laws, not to create (or amend) them. See, e.g., Zi-

votofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015) (noting

that it is “the Legislative Branch, not the Executive Branch, that

makes the law”); Ohio v. Johnson, 467 U.S. 493, 499 (1984) (“[T]he

substantive power to prescribe crimes and determine punish-

ments is vested with the legislature.”); United States v. Wiltberger,

18 U.S. 76, 96 (1820) (noting that it “would be dangerous” for a

court to treat “a case which is within the reason or mischief of a

statute” as being actually “within its provisions, so far as to punish

a crime not enumerated in the statute”).

But even if we didn’t comment on the audacity of the

County’s argument, we do not agree with it. ANCA itself requires

more than enforcement without an enacted law for a restriction

to be “in effect.” Those are the key words in ANCA. See 49 U.S.C.

§ 47524(c)(1) (making ANCA applicable to “airport noise or access

restriction[s] on the operation of stage 3 aircraft not in effect on

October 1, 1990”) (emphasis added); id. § 47524(d) (requiring a

small subset of airport noise or access restrictions to be “in effect

on November 5, 1990” instead) (emphasis added). We turn now

to the Act and its regulations for guidance about the meaning of

“in effect.”

“The construction of a statute by an agency charged with

its administration is entitled to substantial deference from the re-

viewing court.” City of Pompano Beach v. FAA, 774 F.2d 1529,

1540 (11th Cir. 1985) (quotation marks omitted). We “must

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21-10771 Opinion of the Court 35

respect the agency’s findings and conclusions when the question

involves an interpretation of a statute that is within the agency’s

specialized knowledge and expertise,” and we “will adhere to the

principle that the construction of a statute by those charged with

its execution should be followed unless there are compelling indi-

cations that it is wrong.” Id. (cleaned up). Of course, the agency’s

“interpretation of the governing statute, application of that statute

to the facts, and conclusion must . . . be reasonable.” Id. And of

course, “if we determine — employing traditional tools of statu-

tory construction — that Congress has spoken clearly, we do not

defer to the agency’s interpretation of the statute, because we

must give effect to the unambiguously expressed intent of Con-

gress.” Barton v. U.S. Att’y Gen., 904 F.3d 1294, 1298 (11th Cir.

2018) (cleaned up).

Although ANCA does use the phrase “in effect,” the provi-

sions containing it don’t define what the phrase means. See 49

U.S.C. § 47524(c)–(d). Neither does ANCA’s definition section,

see id. § 47522, or the statute’s implementing regulations, see 14

C.F.R. § 161.5. But of some potential help, the regulations do de-

fine “Noise or access restrictions”:

Noise or access restrictions means restrictions (in-

cluding but not limited to provisions of ordinances

and leases) affecting access or noise that affect the op-

erations of Stage 2 or Stage 3 aircraft, such as . . . a

limit, direct or indirect, on the total number of Stage

2 or Stage 3 aircraft operations; . . . and any other limit

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36 Opinion of the Court 21-10771

on Stage 2 or Stage 3 aircraft that has the effect of con-

trolling airport noise. . . .

Id. (emphasis added).

The County asserts the “but not limited to” language shows

that not all restrictions have to be laws. That’s true, as even the

listed examples show: a lease is not a law. But just because ANCA

doesn’t require a restriction to be a law doesn’t mean it allows a

restriction to be completely unwritten.

To agree with the County’s position, though, that’s what

we’d have to find, because the jet restriction has been continu-

ously in effect only if we focus on the County’s asserted unwritten

practice of continuously enforcing it. We’d have to ignore both

the critical gap between 1988 and 1991 when there was no written

restriction and the language of the current restriction, which bans

only “pure turbo-jet aircraft” and not all jets as the 1973 restriction

did. There are plenty of practical reasons that just can’t be the

correct interpretation of ANCA, including notice problems and

the potential for abuse: how can pilots avoid being sanctioned for

violating, and how can we be sure airport operators aren’t selec-

tively enforcing, a restriction that isn’t written and publicly avail-

able?

Beyond practical considerations, ANCA’s implementing

regulations support a conclusion that restrictions must be written.

First, the explicit examples in the definition of noise and access re-

strictions are, as we noted above, “provisions of ordinances and

leases.” 14 C.F.R. § 161.5. Both of those are written documents.

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21-10771 Opinion of the Court 37

And second, as part of the approval process for new restrictions

under ANCA, the regulations require that proponents of new re-

strictions provide:

A clear, concise description of the proposed re-

striction (and any alternatives, in order of preference),

including a statement that it will be a mandatory

Stage 3 restriction; and where the complete text of the

restriction, and any sanctions for noncompliance, are

available for public inspection; . . . [and] [t]he pro-

posed effective date of the restriction, the proposed

method of implementation (e.g., city ordinance, air-

port rule, lease, or other document), and any pro-

posed enforcement mechanism. . . .

Id. § 161.303(c)(2), (5) (emphasis added); see also, e.g., id.

§ 161.305(a) (requiring the “complete text of the proposed re-

striction and any submitted alternatives, including the proposed

wording in a city ordinance, airport rule, lease, or other docu-

ment, and any sanctions for noncompliance”) (emphasis added).

As those regulatory references show, a new noise restriction will

not be ANCA-compliant (and therefore can’t be approved) unless

it is written — unless it has “text” that the public can inspect and

unless it is implemented by a “document” containing its wording.

A grandfathered restriction doesn’t have to comply with

ANCA or its regulations, of course. And the statutory and regula-

tory provisions that set out the grandfather exception don’t con-

tain any requirements other than that the “restriction” be “in ef-

fect” before the cutoff date. See 49 U.S.C. § 47524(c)–(d); 14 C.F.R.

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38 Opinion of the Court 21-10771

§ 161.7(d)(1)–(2). But it is a common tool of statutory construc-

tion to consider what words or phrases mean in nearby statute

sections or related regulations. See Regions Bank v. Legal Out-

source PA, 936 F.3d 1184, 1192 (11th Cir. 2019) (“The whole-text

canon refers to the principle that a judicial interpreter should con-

sider the entire text, in view of its structure and of the physical and

logical relation of its many parts, when interpreting any particular

part of the text. Properly applied, it typically establishes that only

one of the possible meanings that a word or phrase can bear is

compatible with use of the same word or phrase elsewhere in the

statute. Closely related to the whole-text canon is the principle

that a word or phrase is presumed to bear the same meaning

throughout a text unless context requires otherwise.”) (cleaned

up); Cremeens v. City of Montgomery, 602 F.3d 1224, 1227 (11th

Cir. 2010) (“We apply the canons of construction to regulations as

well as to statutes.”).

So we should look at all of ANCA’s implementing regula-

tions to understand what the grandfather provisions mean when

they say “restriction” and “in effect.” What those regulations

demonstrate is that a restriction is in effect when, at minimum, its

complete text is written in a document that is available for public

inspection and its effective date has passed. See 14

C.F.R. §§ 161.303(c), 161.305(a). We think ANCA and its imple-

menting regulations have “spoken clearly” that a restriction must

be written to be in effect. See Barton, 904 F.3d at 1298. But even

if there were any ambiguity on the point, we would still find the

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21-10771 Opinion of the Court 39

FAA’s identical conclusion reasonable and defer to it. See City of

Pompano Beach, 774 F.2d at 1540.

Because restrictions must be written to be “in effect,” the

County’s reliance on its practice of enforcing a restriction that at

times did not exist — and of enforcing the currently existing re-

striction in a way that bans more jets than its words justify — does

not prove that Lantana Airport’s jet restriction has been continu-

ously in effect since 1973. The gap in the restriction’s effectiveness

between 1988 (when the 1973 regulation was repealed by the 1988

ordinance) and at least 1991 (when the County entered the inter-

local governmental agreement with Atlantis, which was a written

document available to the public that contained a version of the

jet restriction) means the restriction isn’t grandfathered under

ANCA.

B. Grant Assurance 22

Finally, the County contends the Associate Administrator’s

conclusion that the County violated Grant Assurance 22 was arbi-

trary, capricious, and unsupported by substantial evidence. It ar-

gues that in concluding a violation occurred, the Associate Admin-

istrator improperly: shifted to the County Forman’s burden to

show that the restriction was justified for safety and efficiency rea-

sons; did not investigate whether the restriction was justified for

safety and efficiency; and did not give a “reasoned explanation for

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40 Opinion of the Court 21-10771

abandoning” the FAA’s earlier finding that the jet restriction was

justified for noise, safety, and efficiency.

The FAA responds that the restriction violates Grant Assur-

ance 22 because denying airport services in a way that violates a

federal law (ANCA) cannot be “reasonable” or “just.” It argues

that who had the burden is “immaterial” because the overwhelm-

ing evidence shows the restriction wasn’t “justified by noise,

safety, or any other concern.” And the FAA asserts that its previ-

ous statements did not constitute a definitive agency position be-

cause they were “informal or non-final” and, in any event, the

agency explained any “change” in position by acknowledging its

previous lack of analysis and its recent discovery of the 1988 re-

peal.

“We will uphold the agency’s decision unless it is arbitrary

and capricious, an abuse of discretion, or otherwise contrary to

law.” Aerial Banners, Inc. v. FAA, 547 F.3d 1257, 1260 (11th Cir.

2008) (citing 5 U.S.C. § 706). We “do not substitute our own judg-

ment for the agency’s about what action is warranted” and “will

set aside the FAA’s order on substantive grounds only if the

agency relied on improper factors, failed to consider important rel-

evant factors, . . . committed a clear error of judgment that lacks a

rational connection between the facts found and the choice

made,” or “fail[ed] to follow its own regulations and procedures.”

Id. (cleaned up). It did none of those things.

As we have explained, Grant Assurance 22(a) requires air-

port sponsors to make the airport available “for public use on

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21-10771 Opinion of the Court 41

reasonable terms and without unjust discrimination.” Airport

Sponsor Assurances at 10. If sponsors want to establish any re-

strictions on an airport’s use, Grant Assurance 22(h) and 22(i) re-

quire those restrictions to be “reasonable,” “not unjustly discrimi-

natory,” and “necessary for the safe and efficient operation of the

airport.” Id. at 10–11. And ANCA requires that new restrictions

meet certain “notice, review, and approval requirements.” 14

C.F.R. § 161.3(c); see also 49 U.S.C. § 47524; 14 C.F.R. §§ 161.1 to

.505.

Whether the current Lantana Airport jet restriction was en-

acted in 1991 by the interlocal governmental agreement with At-

lantis, in 1992 by the County Director of Airports’ directive, or in

1998 by the Rules and Regulations, it was enacted after the two

1990 effective dates of ANCA. See 49 U.S.C. § 47524(c)(1) (making

ANCA applicable to “airport noise or access restriction[s] on the

operation of stage 3 aircraft not in effect on October 1, 1990”); id.

§ 47524(d) (requiring a small subset of airport noise or access re-

strictions to be “in effect on November 5, 1990” instead). Because

the restriction was enacted after ANCA applied and was not grand-

fathered, see supra at 30–39, it had to comply with ANCA’s sub-

stantive and procedural regulations. It did not. We agree with the

Second Circuit that “actions taken in violation of legal mandates

are, by their nature, unreasonable.” Friends of E. Hampton Air-

port, 841 F.3d at 153 (considering ANCA in the context of the pro-

prietor exception, which requires restrictions to be “reasonable,

nonarbitrary, and nondiscriminatory”) (quotation marks

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42 Opinion of the Court 21-10771

omitted). So the ANCA violation is alone enough to sustain the

Associate Administrator’s conclusion that the County violated

Grant Assurance 22(a).

But the Associate Administrator’s thorough Final Agency

Decision goes beyond that violation to explain why none of the

other possible justifications for the Lantana Airport jet restriction

have merit. The Associate Administrator concluded that the re-

striction wasn’t justified by “jet noise,” “aircraft weight,” “cargo

operations,” “safety and efficiency,” or environmental impacts.

His explanations of why those considerations don’t justify the jet

restriction rely on studies that the FAA’s subject-matter expert de-

partments conducted during Forman’s earlier Part 13 proceedings

and also on various general FAA data reports about aircraft noise,

weight, and speed specifications. The Associate Administrator’s

conclusions were supported by substantial evidence and were not

arbitrary and capricious. See 49 U.S.C. § 46110(c); Aerial Banners,

Inc., 547 F.3d at 1260.

Although we agree with the County that Forman had the

burden to show noncompliance, 14 C.F.R. § 16.23(k), we agree

with the FAA that Forman met his burden by demonstrating that

the jet restriction made Lantana Airport unavailable for his public

use for a noise-based reason that did not comply with (and was not

grandfathered under) ANCA. On the other hand, the County had

the burden to prove its motion to dismiss, which was based in part

on its assertion that the jet restriction did not violate Grant Assur-

ance 22, and its affirmative defenses, which included showing that

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21-10771 Opinion of the Court 43

“the restriction is . . . justified . . . to ensure the safety and efficiency

of” Lantana Airport “and the larger Airport System.” Id. Despite

bearing the burden on those issues, the County offered no data or

studies to support its position that the jet restriction was ever jus-

tified based on safety and efficiency.

When the County accepted grant money for the Lantana

Airport, which it did at least as recently as 2012, it agreed to the

grant assurances. Under Grant Assurances 22(h) and 22(i), it was

allowed to prohibit jets and heavy aircraft from using Lantana Air-

port only if that restriction was necessary for safety or efficiency.

Without data or studies to show how it determined the restriction

was necessary for those reasons, there was nothing in the record

to counterbalance Forman’s and the FAA’s evidence that the re-

strictions aren’t justified by noise, safety, efficiency, or other con-

cerns. Instead, all the actual, objective, data-driven evidence in the

record shows that the restrictions aren’t necessary for safety or ef-

ficiency. When we combine that finding with Grant Assurance

22(a)’s requirement that an operator otherwise must “make the

airport available,” it’s clear that the County’s jet restriction is a

Grant Assurance 22 violation. The Final Agency Decision got it

right.

Finally, as to the County’s argument that it has relied for

nearly fifty years on the FAA’s “prior determinations” that the jet

restriction was justified, the Associate Administrator gave a rea-

soned explanation for any “change” in the FAA’s position: it had

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44 Opinion of the Court 21-10771

never before rigorously analyzed the restriction, explained that

analysis, or understood the impact of the 1988 repeal.

Regardless, the jet restriction could not continue un-

changed once the Associate Administrator concluded it wasn’t

necessary. The FAA has exclusive authority over our national

navigable airspace, 49 U.S.C. § 40103(a)(1), which means it’s re-

sponsible for “develop[ing] plans and policy . . . necessary to en-

sure the safety of aircraft and the efficient use” of that space, see

id. § 40103(b)(1). It “may modify or revoke an assignment [of air-

space] when required in the public interest.” Id. So it certainly

can decide whether an airport use restriction should be revoked.

As long as any change in the FAA’s position on an airport re-

striction isn’t based on an impermissible ground like bias, it has

the authority to make that change. As it should, because our na-

tional air safety depends on it.

The Associate Administrator’s conclusion that Lantana Air-

port’s jet restriction violates Grant Assurance 22 wasn’t arbitrary

and capricious but instead was supported by substantial evidence.

49 U.S.C. § 46110(c); Aerial Banners, Inc., 547 F.3d at 1260. The

Associate Administrator considered “important relevant factors”

and demonstrated a “rational connection between the facts found

and the choice made.” Aerial Banners, Inc., 547 F.3d at 1260 (quo-

tation marks omitted). And “the record reveals relevant evidence

that a reasonable mind might accept as adequate to support [the]

conclusion.” City of Pompano Beach, 774 F.2d at 1539–40 (altera-

tion adopted and quotation marks omitted).

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21-10771 Opinion of the Court 45

V. Denial of the Petition for Review

For the reasons discussed, on this record we DENY the

County’s petition for review.